# C_2007235EN.01000401.xml

| 6.10.2007 | EN | Official Journal of the European Union | C 235/4 |
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6.10.2007

EN

Official Journal of the European Union

C 235/4

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Judgment of the Court (Second Chamber) of 18 July 2007 (reference for a preliminary ruling from the Bundesgerichtshof — Germany) — Criminal proceedings against Jürgen Kretzinger

(Case C-288/05) (1)

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(Convention implementing the Schengen Agreement - Article 54 - Ne bis in idem principle - Notion of ‘same acts’ - Contraband cigarettes - Importation into several Contracting States - Prosecution in different Contracting States - Notion of ‘enforcement’ of criminal penalties - Suspension of the execution of the sentence - Setting-off of brief periods of detention pending trial - European arrest warrant)

Ne bis in idem

(2007/C 235/06)

Language of the case: German

Referring court

Bundesgerichtshof

Party in the main proceedings

Jürgen Kretzinger

in the presence of: Hauptzollamt Augsburg

in the presence of:

Re:

Reference for a preliminary ruling — Bundesgerichtshof — Interpretation of Article 54 of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders (OJ 2000 L 239, p. 19) — Ne bis in idem principle — Conditions governing the expiry of the right to bring criminal proceedings — Notion of ‘same acts’ — Transportation of contraband cigarettes across the territory of several Member States — Conviction, in two Member States, in respect of tax evasion and handling the profits of tax evasion, respectively — Notion of ‘enforcement’ — Stay in enforcement of the sentence — Inclusion of periods of detention on remand

Ne bis in idem

Operative part of the judgment

| 1. | Article 54 of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, signed on 19 June 1990, in Schengen, must be interpreted as meaning that:






  — | the relevant criterion for the purposes of the application of that article is identity of the material acts, understood as the existence of a set of facts which are inextricably linked together, irrespective of the legal classification given to them or the legal interest protected; |
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1.

Article 54 of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders, signed on 19 June 1990, in Schengen, must be interpreted as meaning that:

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the relevant criterion for the purposes of the application of that article is identity of the material acts, understood as the existence of a set of facts which are inextricably linked together, irrespective of the legal classification given to them or the legal interest protected;

| — | acts consisting in receiving contraband foreign tobacco in one Contracting State and of importing that tobacco into another Contracting State and being in possession of it there, characterised by the fact that the defendant, who was prosecuted in two Contracting States, had intended from the outset to transport the tobacco, after first taking possession of it, to a final destination, passing through several Contracting States in the process, constitute conduct which may be covered by the notion of ‘same acts’ within the meaning of Article 54. It is for the competent national courts to make the final assessment in that respect. |
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acts consisting in receiving contraband foreign tobacco in one Contracting State and of importing that tobacco into another Contracting State and being in possession of it there, characterised by the fact that the defendant, who was prosecuted in two Contracting States, had intended from the outset to transport the tobacco, after first taking possession of it, to a final destination, passing through several Contracting States in the process, constitute conduct which may be covered by the notion of ‘same acts’ within the meaning of Article 54. It is for the competent national courts to make the final assessment in that respect.

| 2. | For the purposes of Article 54 of the CISA, a penalty imposed by a court of a Contracting State ‘has been enforced’ or is ‘actually in the process of being enforced’ if the defendant has been given a suspended custodial sentence. |
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2.

For the purposes of Article 54 of the CISA, a penalty imposed by a court of a Contracting State ‘has been enforced’ or is ‘actually in the process of being enforced’ if the defendant has been given a suspended custodial sentence.

| 3. | For the purposes of Article 54 of the CISA, a penalty imposed by a court of a Contracting State is not to be regarded as ‘having been enforced’ or ‘actually in the process of being enforced’ where the defendant was for a short time taken into police custody and/or held on remand pending trial and that detention would count towards any subsequent enforcement of the custodial sentence under the law of the State in which judgment was given. |
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3.

For the purposes of Article 54 of the CISA, a penalty imposed by a court of a Contracting State is not to be regarded as ‘having been enforced’ or ‘actually in the process of being enforced’ where the defendant was for a short time taken into police custody and/or held on remand pending trial and that detention would count towards any subsequent enforcement of the custodial sentence under the law of the State in which judgment was given.

| 4. | The fact that a Member State in which a person has been sentenced by a final and binding judgment under its national law may issue a European arrest warrant for the arrest of that person in order to enforce the sentence under Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States cannot affect the interpretation of the notion of ‘enforcement’ within the meaning of Article 54 of the CISA. |
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4.

The fact that a Member State in which a person has been sentenced by a final and binding judgment under its national law may issue a European arrest warrant for the arrest of that person in order to enforce the sentence under Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States cannot affect the interpretation of the notion of ‘enforcement’ within the meaning of Article 54 of the CISA.

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(1)  OJ C 257, 15.10.2005.

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